Includes copyrighted material of Insurance Services Office, Inc., with its permission.
October 3, 2013
Summary: Insurance Services Office (ISO) has developed the Commercial Excess Liability Coverage Form, (CX 00 01 04 13), which was introduced as a part of the Commercial Umbrella Liability program. The form was designed to sit atop various ISO and independent company programs, including general liability, commercial auto, employer's liability, and businessowners.
This article is a general overview of the current ISO Commercial Excess Liability Coverage Form. The coverages, exclusions, conditions, and definitions of the form are noted and analyzed.
Topics covered:
1.Insuring Agreement
a.We will pay on behalf of the insured the “ultimate net loss” in excess of the “retained limit” because of “injury or damage” to which insurance provided under this Coverage Part applies.
We will have the right and duty to defend the insured against any suit seeking damages for such “injury or damage” when the applicable limits of “controlling underlying insurance” have been exhausted in accordance with the provisions of such “controlling underlying insurance”.
When we have no duty to defend, we will have the right to defend, or to participate in the defense of, the insured against any other suit seeking damages for “injury or damage”. However, we will have no duty to defend the insured against any suit seeking damages for which insurance under this policy does not apply.
At our discretion, we may investigate any “event” that may involve this insurance and settle any resultant claim or suit, for which we have the duty to defend.
But:
(1)The amount we will pay for “ultimate net loss” is limited as described in Section II – Limits Of Insurance; and
(2)Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements under this Coverage Part. However, if the policy of “controlling underlying insurance” specifies that limits are reduced by defense expenses, our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of defense expenses, judgments or settlements under this Coverage Part.
b.This insurance applies to “injury or damage” that is subject to an applicable “retained limit”. If any other limit, such as, a sublimit, is specified in the “controlling underlying insurance”, this insurance does not apply to “injury or damage” arising out of that exposure unless that limit is specified in the Declarations under the Schedule of “controlling underlying insurance”.
c.If the “controlling underlying insurance” requires, for a particular claim, that the “injury or damage” occur during its policy period in order for that coverage to apply, then this insurance will only apply to that “injury or damage” if it occurs during the policy period of this Coverage Part. If the “controlling underlying insurance” requires that the “event” causing the particular “injury or damage” takes place during its policy period in order for that coverage to apply, then this insurance will apply to the claim only if the “event” causing that “injury or damage” takes place during the policy period of this Coverage Part.
d.Any additional insured under any policy of “controlling underlying insurance” will automatically be an additional insured under this insurance. If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance required by the contract, less any amounts payable by any “controlling underlying insurance”.
Additional insured coverage provided by this insurance will not be broader than coverage provided by the “controlling underlying insurance”.
Analysis
This section of the policy explains that the insured agrees to pay on behalf of the insured the total sum, after reduction for recoveries, or salvages collectible, that the insured becomes legally obligated to pay as damages by reason of settlements, judgments, binding arbitration, or any other binding alternate dispute resolution proceeding entered into with the insurer's consent. This amount is to be in excess of the available limits of controlling underlying insurance applicable to the claim because of injury or damage.
This portion of the policy also describes when the insured has a right and duty to defend the insured. The insurer has a right to defend against any suit seeking damages for injury or damage when the applicable limits of the controlling underlying insurance have been exhausted.
When the insurer has no duty to defend, it will still have the right to defend, or to participate in the defense of, the insured against any other suit seeking damages. The insurer, of course, has no duty to defend the insured against any suit seeking damages for which insurance under excess liability coverage does not apply. The policy also gives the insurer the right to investigate any occurrence, offense, accident, act, or other event, to which the applicable controlling underlying insurance applies.
Section I also explains that the insurance applies to injury or damage subject to an applicable retained limit, and if any other limit is specified the insurance does not apply to the injury or damage arising out of that exposure unless that limit is specified in the declarations page of the controlling underlying insurance.
This part of the policy explains how it handles certain policy period requirements of the controlling underlying insurance. Also, the policy provides that additional insureds listed on the controlling underlying insurance are automatically covered although their coverage will not be any broader than it is under the controlling underlying insurance.
The following exclusions, and any other exclusions added by endorsement, apply to this Coverage Part. In addition, the exclusions applicable to any “controlling underlying insurance” apply to this insurance unless superseded by the following exclusions, or superseded by any other exclusions added by endorsement to this Coverage Part.
Insurance provided under this Coverage Part does not apply to:
a.Medical Payments
Medical payments coverage or expenses that are provided without regard to fault, whether or not provided by the applicable “controlling underlying insurance”.
b.Auto
Any loss, cost or expense payable under or resulting from any of the following auto coverages:
(1)First-party physical damage coverage;
(2)No-fault coverage;
(3)Personal injury protection or auto medical payments coverage; or
(4)Uninsured or underinsured motorists coverage.
c.Pollution
(1)”Injury or damage” which would not have occurred, in whole or in part, but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.
(2)Any loss, cost or expense arising out of any:
(a)Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, pollutants; or
(b)Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, pollutants.
This exclusion does not apply to the extent that valid “controlling underlying insurance” for the pollution liability risks described above exists or would have existed but for the exhaustion of underlying limits for “injury or damage”. Medical payments coverage or expenses that are provided without regard to fault, whether or not provided by the applicable “controlling underlying insurance”.
d.Workers' Compensation And Similar Laws
Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law.
Analysis
The exclusions section of the form eliminates coverage for many of those areas typically not covered by the CGL or commercial umbrella forms. For instance, workers compensation, auto coverages, and pollution are all areas typically not covered by the CGL or umbrella forms.
Note that exclusion c. is an absolute pollution exclusion with no stated exceptions. If, however, controlling underlying coverage exists for pollution liability, the exclusion does not apply
1.The Limits of Insurance shown in the Declarations, and the rules below fix the most we will pay regardless of the number of:
a.Insureds;
b.Claims made or suits brought, or number of vehicles involved;
c.Persons or organizations making claims or bringing suits; or
d.Limits available under any “controlling underlying insurance”.
2.The Limits of Insurance of this Coverage Part will apply as follows:
a.This insurance only applies in excess of the “retained limit”.
b.The Aggregate Limit is the most we will pay for the sum of all “ultimate net loss”, for all “injury or damage” covered under this Coverage Part.
However, this Aggregate Limit only applies to “injury or damage” that is subject to an aggregate limit of insurance under the “controlling underlying insurance”.
c.Subject to Paragraph 2.b. above, the Each Occurrence Limit is the most we will pay for the sum of all “ultimate net loss” under this insurance because of all “injury or damage: arising out of any one “event”.
d.If the Limits of Insurance of the “controlling underlying insurance” are reduced by defense expenses by the terms of that policy, any payments for defense expenses we will make will reduce our applicable Limits of Insurance in the same manner.
3.If any “controlling underlying insurance” has a policy period that is different from the policy period of this Coverage Part then, for the purposes of this insurance, the “retained limit” will only be reduced or exhausted by payments made for “injury or damage” covered under this insurance.
The Aggregate Limit of this Coverage Part applies separately to each consecutive annual period of this Coverage Part and to any remaining period of this Coverage Part of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance.
Analysis
This section of the policy establishes the most that the insurer will pay for a claim or lawsuit against the insured. The limits that are set on the declarations page will not be exceeded regardless of the number of insureds, claims, or number of vehicles involved. The limits of insurance section notes that the policy has an aggregate limit, an each occurrence limit, and an any one person or organization limit.
The aggregate limit is the sum of all ultimate net loss under the policy. This limit applies to injury or damage that is subject to an aggregate limit of insurance under the controlling underlying insurance.
The following conditions apply. In addition, the conditions applicable to any “controlling underlying insurance” are also applicable to the coverage provided under this insurance unless superseded by the following conditions.
1.Appeals
If the “controlling underlying insurer” or insured elects not to appeal a judgment in excess of the “retained limit”, we may do so at our own expense. We will also pay for taxable court costs, pre- and postjudgment interest and disbursements associated with such appeal. In no event will this provision increase our liability beyond the applicable Limits of Insurance described in Section II-Limits Of Insurance.
2.Bankruptcy
a.Bankruptcy Of Insured
Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part.
b.Bankruptcy Of Controlling Underlying Insurer
Bankruptcy or insolvency of the “controlling underlying insurer” will not relieve us of our obligations under this Coverage Part.
However, insurance provided under this Coverage Part will not replace any “controlling underlying insurance” in the event of bankruptcy or insolvency of the “controlling underlying insurer”. This insurance provided under this Coverage Part will apply as if the “controlling underlying insurance” were in full effect and recoverable.
3.Duties In The Event Of An Event, Claim or Suit
a.You must see to it that we are notified as soon as practicable of an “event”, regardless of the amount, which may result in a claim under this insurance. To the extent possible, notice should include:
(1)How, when and where the “event” took place;
(2)The names and addresses of any injured persons and witnesses; and
(3)The nature and location of any “injury or damage” arising out of the “event”.
b.If a claim is made or suit is brought against any insured, you must:
(1)Immediately record the specifics of the claim or suit and the date received; and
(2)Notify us as soon as practicable.
You must see to it that we receive written notice of the claim or suit as soon as practicable.
c.You and any other insured involved must:
(1)Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or suit;
(2)Authorize us to obtain records and other information;
(3)Cooperate with us in the investigation or settlement of the claim or defense against the suit; and
(4)Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of “injury or damage” to which this insurance may also apply.
d.No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.
Analysis
The form offers many of the same conditions as the CGL policy and Umbrella policy. For more information on the conditions, see General Provisions of the CGL.
Among the conditions listed is the bankruptcy provision, which explains that the policy will not relieve the insurer of its duty in the event the controlling underlying insurer becomes insolvent or goes bankrupt and that it will not replace the controlling underlying insurance.
The policy also affords the insurer the right to appeal judgments, in excess of the limits of underlying insurance, even if the controlling underlying insurer or the insured chooses not to appeal. The excess insurer agrees to pay for the expenses of such an appeal, along with taxable costs, prejudgment and post judgment interest, and disbursements.
The 2013 form added “insolvency” to the bankruptcy of controlling underlying insurer to reinforce that both bankruptcy and insolvency of the controlling underlying insurer will not relieve the excess insurer of its obligation under this provision.
Another provision here explains the specific duties of the insured in case of an event, claim or suit. These include the duty to notify the insurer of an event as soon as practicable and the duty to refrain from making voluntary payments without the insurer's consent.
4.First Named Insured Duties
The first Named Insured is the person or organization first named in the Declarations and is responsible for the payment of all premiums. The first Named Insured will act on behalf of all other Named Insureds for giving and receiving of notice of cancellation or the receipt of any return premium that may become payable.
At our request, the first Named Insured will furnish us, as soon as practicable, with a complete copy of any “controlling underlying insurance” and any subsequently issue endorsements or policies which may in any way affect the insurance provided under this Coverage Part.
5.Cancellation
a.The first Named Insured shown in the Declarations may cancel this policy by mailing or delivering to us advance written notice of cancellation.
b.We may cancel this policy by mailing or delivering to the first Named Insured written notice of cancellation at least:
(1)10 days before the effective date of cancellation if we cancel for nonpayment of premium; or
(2)30 days before the effective date of cancellation if we cancel for any other reason.
c.We will mail or deliver our notice to the first Named Insured's last mailing address known to us.
d.Notice of cancellation will state the effective date of cancellation. The policy period will end on that date.
e.If this policy is cancelled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata. The cancellation will be effective even if we have not made or offered a refund.
f.If notice is mailed, proof of mailing will be sufficient proof of notice.
6.Changes
This Coverage Part contains all the agreements between you and us concerning the insurance afforded. The first Named Insured is authorized by all other insureds to make changes in the terms of this Coverage Part with our consent. This Coverage Part's terms can be amended or waived only by endorsement.
7.Maintenance Of/Changes To Controlling Underlying Insurance
Any “controlling underlying insurance” must be maintained in full effect without reduction of coverage or limits except for the reduction of aggregate limits in accordance with the provisions of such “controlling underlying insurance” that results from “injury or damage” to which this insurance applies.
Such exhaustion or reduction is not a failure to maintain “controlling underlying insurance”. Failure to maintain “controlling underlying insurance” will not invalidate insurance provided under this coverage Part, but insurance provided under this Coverage Part will apply as if the “controlling underlying insurance” were in full effect.
The first Named Insured must notify us in writing , as soon as practicable, if any “controlling underlying insurance” is cancelled, not renewed, replaced or otherwise terminated, or if the limits or scope of coverage of any “controlling underlying insurance” is changed.
8.Other Insurance
a.This insurance is excess over, and shall not contribute with any other insurance, whether primary, excess, contingent or on any other basis. This condition will not apply to insurance specifically written as excess over this Coverage Part.
When this insurance is excess, if no other insurer defends, we may undertake to do so, but we will be entitled to the insured's rights against all those other insurers.
b.When this insurance is excess over other insurance, we will pay only our share of the “ultimate net loss” that exceeds the sum of:
(1)The total amount that all such other insurance would pay for the loss in the absence of the insurance provided under this Coverage Part; and
(2)The total of all deductibles and self-insured amounts under all that other insurance.
Analysis
Many of the conditions listed here are the same or similar to standard Commercial General Liability and Umbrella policy provisions. These provisions include change and cancellation guidelines.
This set of conditions also helps describe the nature of the excess policy. One of the provisions declares that liability under the policy will not apply unless and until the insured or the controlling underlying insurer become obligated to pay the available limits of the scheduled controlling underlying insurance. Thus, if the limits of insurance on the controlling underlying policy or the self-insured retention of the insured are not breached, the excess policy will not come into play.
Another provision requires the maintenance of underlying insurance. Failure to maintain controlling underlying insurance will not invalidate the excess policy coverage, but the excess insurer will apply the insurance of the excess policy as if the controlling underlying insurance were in full effect.
9. Premium Audit.
a.We will compute all premiums for this Coverage Part in accordance with our rules and rates.
b.If this policy is auditable, the premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period, we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit premium is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the first Named Insured.
c.The first Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request.
10.Loss Payable
Liability under this Coverage Part does not apply to a given claim unless and until:
a.The insured or insured's “controlling underlying insurer” has become obligated to pay the “retained limit”; and
b.The obligation of the insured to pay the “ultimate net loss” in excess of the retained limit” has been determined by a final settlement or judgment or written agreement among the insured, claimant, “controlling underlying insurer” (or a representative of one or more of these) and us.
11.Legal Action Against Us
No person or organization has a right under this Coverage Part:
a.To join us as a party or otherwise bring us into a suit asking for damages from an insured; or
b.To sue us on this Coverage Part unless all of its terms have been fully complied with.
A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured, “controlling underlying insurer” and the claimant or the claimant's legal representative.
12.Transfer of Defense
a.Defense Transferred To Us
When the limits of “controlling underlying insurance” have been exhausted, in accordance with the provisions of “controlling underlying insurance”, we may elect to have the defense transferred to us. We will cooperate in the transfer of control to us of any outstanding claims or suits seeking damages to which this insurance applies which would have been covered by the “controlling underlying insurance” had the applicable limit not been exhausted.
b.Defense Transferred By Us
When our limits of insurance have been exhausted our duty to provide a defense will cease.
We will cooperate in the transfer of control of defense to any insurer specifically written as excess over this Coverage Part of any outstanding claims or suits seeking damages to which this insurance applies and which would have been covered by the “controlling underlying insurance” had the applicable limit not been exhausted.
In the event that there is no insurance written as excess over this Coverage Part, we will cooperate in the transfer of control to the insured and its designated representative.
13.When We Do Not Renew
If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 30 days before the expiration date.
If notice is mailed, proof of mailing will be sufficient proof of notice.
Analysis
Many of these conditions are self-explanatory and not out of the ordinary.
Of note is the provision stating that when the controlling underlying limits of insurance have been exhausted in the payment of judgments or settlements, the excess insurer will take over the duty to defend the insured. The controlling underlying insurance policy has a declaration that its duty to defend ends when the applicable limit of insurance is used up, so this particular provision tells the insured that his defense is still being handled by an insurer.
The second part of this provisions mandates that when the insurer's limits of insurance have been exhausted, its duty to provide a defense ends. If there is no insurance written as excess, the insurer agrees to cooperate in the transfer of control to the insured and its designated representative.
The definitions applicable to any “controlling underlying insurance” also apply to this insurance. In addition, the following definitions apply.
1.”Controlling underlying insurance” means any policy of insurance or self-insurance listed in the Declarations under the Schedule of “controlling underlying insurance”.
2.”Controlling underlying insurer” means any insurer who provides any policy of insurance listed in the Declarations under the Schedule of “controlling underlying insurance”.
3.”Event” means an occurrence, offense, accident, act, or other event, to which the applicable “controlling underlying insurance” applies.
4.”Injury or Damage” means any injury or damage covered in the applicable “controlling underlying insurance” arising from an “event”.
5.”Retained limit” means the available limits of “controlling underlying insurance” applicable to the claim.
6.”Ultimate net loss” means the total sum, after reduction for recoveries, or salvages collectible, that the insured becomes legally obligated to pay as damages by reason of:
a.Settlements, judgments, binding arbitration; or
b.Other binding alternate dispute resolution proceeding entered into with our consent.
“Ultimate net loss” includes defense expenses if the “controlling underlying insurance” specifies that limits are reduced by defense expenses.
Analysis
The 2013 edition of the form revised the definition of “event” to remove the word “occurrence” from quotation marks. The word “occurrence” is not a defined term on this policy, so the quotation marks were removed.